Original Meaning and Original Applications: A Response to BalkinBy Mike Rappaport

Having returned from my vacation, I now offer this belated response to Jack Balkin’s thoughtful post addressing the normative argument that John McGinnis and I have developed for originalism. Jack chooses not to comment on our main argument that the supermajoritarian procedure necessary for enacting constitutional provisions provides a justification for originalist interpretation. Instead, Jack argues that the originalism justified by this supermajoritarian procedure would not really impose significant limits on interpretation and would authorize judges to interpret abstract provisions in a way that resembles interpretation of a living Constitution.

While Jack’s arguments are interesting, I must disagree with them. Our supermajoritarian argument for originalism does not allow such freewheeling interpretation, but instead imposes significant constraints on judges. Under our supermajoritarian approach, one looks to the meaning that the people in the enactment process expected to apply. That meaning is determined by the interpretive rules that the framers’ generation expected to apply to the Constitution – interpretive rules that largely looked to the intent of a provision as expressed in the text. (Actually, the argument here is more complicated, but let me skip over these complications.) It is those rules, not some philosophical conception of meaning, that applies, and those rules would not grant judges the kind of discretion Balkin contemplates.

I interpret Jack to be making two interrelated points. First, he argues that the framers may have purposely left constitutional provisions vague or abstract in order to pass the provision and thereby left the decision as to its meaning to future judges. I tend to doubt that many of the framers chose to pursue a strategy of delegating to future judges. Such delegations are very risky (and neither the 14th amendment framers nor the Antifederalists who inspired Bill of Rights were enamored of relying on judicial discretion) and it is even less likely that a supermajority could be found who would have wanted to pursue this strategy.

But even assuming that the framers left the provisions abstract in order to pass them, that does not mean that the provision should be interpreted to grant discretion. The question is not what the subjective motivations were, but how the language should be interpreted under the interpretive rules then in play. Under those rules, abstract sounding provisions can nonetheless have determinate and unvarying meanings. Moreover, the framers may not have believed they were adopting vague or abstract provisions. For example, when the framers adopted the provisions involving “cruel and unusual punishment” and “privileges and immunities,” they may have understood these concepts (which were not new to the law) to have determinate, historical meanings.

Jack’s second point is that only the (general) original meaning, rather than the applications of that meaning intended or expected by the framers, is binding. Thus, judges could ignore how the framers expected their provisions to apply. Since this is a complicated question, I will not be able to give a complete answer. In general, though, my view is that the applicable meaning of a provision is conveyed not only by the general definition in a dictionary, but also by the applications that one believes people who used the word at the time would have been intending to convey. First, as with the previous question, the answer to the whether applications are binding will turn mainly not on what one might regard as the philosophically best understanding of meaning, but instead on the interpretive rules that existed when the Constitution was written. Second, Jack’s narrow view of what is binding– only the general meanings, but never the applications – is almost certainly not the view that these interpretive rules employed.

Third, while applications will not always be binding, there are least two ways in which they will be important determinants of meaning. First, applications are some of the best evidence that we have of general meanings. For example, the words of a provision will often admit of several possible interpretations. To understand which one was being communicated to an audience, a good source of evidence is the specific applications that people at the time believed the words had. For example, if people in 1870 believed that the Privileges and Immunities Clause of the 14th Amendment protected the Fifth Amendment right of self incrimination, that would be evidence in favor of a meaning of the Privileges and Immunities Clause that incorporates the Bill of Rights.

Besides being evidence of original meaning, some applications will also be constitutive of the original meaning. The meaning of a particular provision is not only the general meaning that would have been given in the dictionary at the time. The meaning can also include core applications of the provision. For example, imagine that the Equal Protection Clause is understood to have the general meaning of barring “caste legislation.” Even if later interpreters came to believe that racial distinctions were not associated with caste legislation, a strong argument could be made that this is part of what the meaning of caste legislation meant in 1870.

These points suggest that the holding in Lawrence v. Texas protecting homosexual sodomy is not so easily found in the original meaning. To make the case as strong for Lawrence as possible, assume that it is decided under the Equal Protection Clause rather than the Due Process Clause. Assume also that the original meaning of Equal Protection prohibited caste legislation and that it is clear that people at the time would not have applied the Clause to same-sex sodomy. Jack seems to have in mind that modern interpreters could ignore the framers’ application based on the idea that discrimination against gays is a form of caste legislation and the framers missed this point based on prejudice or some other blinder. But before rejecting the framers’ application, one would need to conclude that the Clause covered not only laws directed towards racial groups, where there were no particular behaviors associated with the race, but also towards groups like homosexuals whose behaviors are necessarily distinctive – behaviors which were morally condemned in 1870 and still are morally condemned by many in our day. One would need strong evidence that the concept of caste legislation included not only racial groups but also groups based on controversial behaviors to reject the framers’ application.

In the end, then, originalist interpretation may not incorporate all of the applications that the framers intended or expected, but it does not permit the kind of free wheeling interpretation that Balkin suggests.